Hau and Dam and Ors
[2014] FCCA 3170
•16 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAU & DAM & ORS | [2014] FCCA 3170 |
| Catchwords: FAMILY LAW – Parenting – application by mother and maternal family members in anticipation of mother’s impending demise – urgency – undefended hearing in circumstances of urgency and when sufficient due process afforded to the father – orders sought vesting parental responsibility in a triumbrant of maternal family members including the mother – orders reflect appropriate and insightful planning for the child’s future best interests in light of imminent events. |
| Legislation: Federal Circuit Court Rules 2001, r.4.03 |
| Allesch v Maunz [2000] HCA 40 Aldridge & Keaton (2009) FLC 93-421 |
| Applicant: | MS HAU |
| First Respondent: | MR DAM |
| Second Respondent: | MS T HAU |
| Third Respondent: | MS LO |
| File Number: | PAC 2982 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 16 December 2014 |
| Date of Last Submission: | 16 December 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 16 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | South West Sydney Legal Centre |
| No appearance by the First Respondent |
| Solicitors for the Second Respondent: | Mr Brown of Browns the Family Lawyers |
| The Third Respondent appeared in Person |
ORDERS
The child X born (omitted) 2013 (“the child”), shall live with the mother Ms Hau and the maternal aunt Ms T Hau.
The mother Ms Hau and the maternal aunt Ms T Hau and the maternal grandmother Ms Lo shall have equal and shared parental responsibility for the child X born (omitted) 2013.
The child shall spend time with the father Mr Dam as agreed.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Remove all issues from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Hau & Dam & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 2982 of 2014
| MS HAU |
Applicant
And
| MR DAM |
First Respondent
MS T HAU
Second Respondent
MS LO
Third Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future care arrangements for a young child X born (omitted) 2013. X is 1 year of age.
The parties to the proceedings, for reasons that will become obvious, are numerous.
The Applicant is X’s mother. The first Respondent’s is X’s father. The second and third Respondents are X’s maternal Aunt and maternal grandmother respectively.
Due Process
These proceedings were commenced by an Application filed on 14 November 2014. Whilst the application includes an abridgement plea it would not appear, for reasons that are unknown, that the matter was listed with any particular haste. The matter was listed by the Registry to a date a little over four weeks after the date of filing.
The second and third Respondents have each been served and are ready to proceed. The second Respondent appears today and is represented, has filed responding material and consents to the relief that is sought by the Applicant. Similarly, the third Respondent appears today in person, although having taken legal advice, and indicates her consent to the relief that is sought having filed a Response and a brief Affidavit.
The Respondent father does not appear today. He was personally served with the application and supporting material on 19 November 2014 only some few days after the date of filing. An Acknowledgment of Service was signed and that is attached to the Affidavit of Service. I am satisfied that service was affected on 19 November 2014 that being approximately four weeks ago.
Rule 4.03 of the Federal Circuit Court Rules 2001 requires that a Response and Affidavit be filed within 14 days of service, not including the date of service or the Court date itself. Clearly, there has been a period nearly twice as long as the rules provide. No Response has been filed nor has a Notice of Address for Service been filed by the father or any legal practitioner representing the father’s interests.
Exhibit A1 comprises correspondence from attorneys who purport to be instructed by the father. That correspondence is addressed to the solicitors for the second Respondent and dated 15 December 2014. The letter is in somewhat tortured English.
The correspondence would appear to indicate an absence of objection to the relief that is sought. I have expressed it in those terms as the correspondence goes short of communicating unconditional consent. Objection is taken to what are described as “opinions” of the second Respondent and Applicant. The letter concludes:
Considering the counselling he got in the interest of his child X he is willing to sign consent orders provided his right to visit the child is warranted.
I can only assume it is intended to suggest that the father seeks that his “right” to spend time with X is protected, preserved or reserved. I make clear that the father has no such right. The child has rights including the right to know and spend time with her father. Parents have duties and responsibilities.
There is no appearance today by or on behalf of the Respondent father. There is no Response filed by him.
There are real circumstances of urgency compelling the address of this matter and determination of the mother’s application. The parties present all consent to the relief sought. The father, the first Respondent, is absent. Such absence of both Response and appearance in those circumstances is all the more regrettable and renders the role of this Court, to deal with the painful circumstances that the evidence suggests, all the more onerous.
I am satisfied that:
a)The Respondent father has been personally served on 19 November 2014.
b)The Respondent father has been afforded due process. As was made clear by the High Court in Allesch v Maunz [2000] HCA 40 “Affording the opportunity [to be heard] is all that the law and principle require”. Due process requires that a party be given an opportunity to participate and be heard not an opportunity of their choosing. What is a “reasonable” opportunity depends on the circumstances. In this case adjournment would render the conduct of this Application by this mother entirely oppressive and burdensome if not rendering the application nugatory.
c)There has been no appearance by the first Respondent or any application by him for adjournment. There is no application to appear by telephone or by other electronic means, such as would have rendered the disposal of this matter far easier for all concerned including the Court.
d)The Applicant and the second and third Respondents would be denied due process by adjournment. They are entitled to the relief that they seek by reference to the evidence that is before the Court – which evidence is unchallenged – and which is, as regards the material of all three participating parties, plausible, internally consistent and corroborative each of the other. The evidence clearly establishes some real urgency in the address of this matter.
e)The child’s best interest would not be served by adjournment. Indeed, there is no agitation for adjournment.
In those circumstances, as will become apparent from a discussion of the evidence, the exceptional and urgent circumstances of the case compels, I am satisfied, that the matter should proceed today on a final and undefended basis.
Material Considered
A Case Outline document has been provided by the Applicant’s Counsel and I have read each of the documents enumerated therein.
I do not propose to canvass and deal with the evidence set out in that material in any great detail. It is unchallenged and, as I have indicated, it is internally consistent and plausible and I accept it as truthful. I make findings of fact in accordance with each paragraph thereof.
There is no purpose to be served in orally canvassing the evidence in detail. That would simply cause further upset to all, upset that has been aggravated by the father’s non-participation and, notwithstanding his apparent consent via his attorneys, his failure to sign Terms of Settlement.
Suffice to say that all of the material, that which has been filed and identified, has been read and considered and I will refer to portions of the evidence which require specific identification and address by reference to the legislative pathway.
Before doing so, I will note the basic chronology of events in relation to young X’s life, a child who has only just turned one year of age.
X’s parents met through an internet dating site in 2010 and they commenced to live together on or about (omitted) 2012. They separated on 20 March 2013 being a period of cohabitation of a little over four months.
At the time of separation the mother was pregnant. The mother was also suffering various health conditions including cancer of the tongue which she was not then aware of but very shortly after the child’s birth became aware of following investigation and diagnosis.
The mother commenced treatment fairly immediately after being advised of her diagnosis. Treatment has been unsuccessful. The cancer has been aggressive and has spread to various other organs and areas. Her prognosis is extremely poor. In all reality the mother has some months or possibly some weeks left to live.
X was born after the parents separated on (omitted) 2013.
As a consequence of the mother’s ill health she lives with her sister and grandmother and receives significant assistance from them. Indeed, the mother’s evidence is touching indicating that due to ill health and weakness the majority of X’s care is provided by X's Aunt. She is too weak to lift the child and she has selflessly provided for the child to be cared for primarily by her sister so that X will bond and attach with her sister as her carer. That arrangement will continue after the mother’s inevitable and imminent death.
The circumstances of this matter are very sad. These are parties with real problems. The mother has a real basis to complain about that which life has dealt her unlike many litigants before this Court. Yet despite those tragic difficulties this family has dealt with these events and planned for the child’s present and future care and welfare with decorum, grace and dignity.
I do not propose to canvass the evidence further. It would not be productive nor is it possible to do so without being emotionally overwhelmed. All that is contained in the filed material is considered.
Legislative Pathway
Jurisdiction and Standing
I must be satisfied as to jurisdiction and the standing of the parties. I am satisfied that each party is either a parent, grandparent or, in the case of the Aunt, a person with sufficient interest in the child’s care, welfare and development and thus, by reference to section 65C of the Family Law Act 1975 all properly parties.
Best Interests
I must commence with section 60CA of the Act, which provides that the child’s best interest must be paramount in all that the Court does.
The Orders that the Court is invited to make, being Orders as sought by the mother and consented to by the second and third Respondents, will be entirely consistent with this child’s best interests. Those Orders will simply endorse that which has already been arranged and is in operation.
Objects and principles
I must then turn to the objects and principles set out in section 60B and which I incorporate herein.
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
I must ensure that children receive the benefit of both parents being meaningfully involved in their lives. It would not appear that this can be achieved.
The evidence before the Court makes clear that there has been no impediment to the father having a relationship with this young child and yet he has chosen not to.
The mother’s evidence makes clear that from X’s birth to the present that the father had seen fit to visit the child on approximately four occasions. Why that is so is unclear. However, it is simply the father’s position.
Nothing that this Court does, can or will facilitate a relationship between this child and the father. The father would not appear to express any significant will or action regarding his responsibilities towards the child. This is so as regards his relationship with the child, his financial support of the child and his absence of assistance to the mother and her family at this time of great need.
The Court must make orders that protect children from physical or psychological harm. There is no issue raised in these proceedings that would warrant any further investigation.
The Court must make Orders that ensure that children receive adequate and proper parenting and the parents fulfil their duties. In Aldridge & Keaton (2009) FLC 93-421 the Full Court was clear that one can expand the consideration of the objects and principles and the majority of considerations under section 60CC of the Act so as to apply them to persons other than parents. That provides the great comfort that the Court can be satisfied that by making the Orders that are sought by the Applicant, which will allocate parental responsibility to a triumbrant of the Applicant, X's Aunt and X’s grandmother, and will provide for the child to live with the mother and Aunt, that this child will receive adequate and proper parenting.
The principles underlying the objects provide that a child’s best interests should be met through the enlivenment and preservation of their rights including rights to know and be cared for by both parents and to spend time on a regular basis with both parents and with other people of significance to them.
Little, if anything, can be done with respect to the father and X’s relationship or engagement with him. Time has been available and he would not appear, on whatever basis and for whatever reason, to be capable of enjoying or expressing that relationship. However, if one expands the consideration to the other people of vast importance in this child’s life, that right can be fulsomely achieved.
The objects and principles will be achieved and best achieved by the relief sought.
Presumption of Equal Shared Parental Responsibility
I must then turn to section 61DA of the Act and the presumption of equal shared parental responsibility. The presumption applies only as between parents.
The presumption applies between the mother and father unless the Court is satisfied on reasonable grounds that it does not apply or that it is rebutted as being contrary to the child’s best interests. I am satisfied that the presumption is rebutted. However, I will discuss the reasons in more detail in a consideration of section 60CC of the Act. For present purposes, suffice to note that I am satisfied that it would not be in the child’s best interests. It is not practical. It is not feasible and the evidence demonstrates it to be so.
Whilst there is some contention as to whether one must deal with the rebuttal of the presumption before considering the child’s best interests, it would appear logical that it must be addressed at least at first instance and prior to turning to the balance of considerations. The application of the presumption determines what consideration must occur as regards the child’s time with parents and specifically whether there is a mandated obligation to consider equal and substantial and significant time per section 65DAA of the Act. As I am satisfied that the presumption is rebutted there is no such mandated requirement.
There is no application before the Court by the father seeking any Order. The correspondence from his attorneys would appear to suggest that he is content with the living arrangements of the child and the decision making responsibilities to be allocated on a tripartite basis between the mother, Aunt and grandmother. On that basis and noting the father’s express desire to have “his right to spend time with the child” reserved, I am satisfied that the Orders sought and which application I propose to accede to are consistent with the child’s best interests and will best further and protect those interests.
An Order is sought that this young child would spend time with her father “as agreed between the father and the child’s Aunt”. On that basis I am entirely satisfied that the matter can be concluded on an undefended basis and in furtherance of the child’s best interests consistent with the father’s position as advised by his attorneys.
Primary Considerations
In turning to section 60CC of the Act, I must commence with the primary considerations being:
b)The benefit to the child of having a meaningful relationship with both parents (that consideration is confined to the parents by reference to Burton & Churchin & Anor [2013] FamCAFC 180); and
c)The need to protect the child from harm.
The later consideration is prioritised over the former by operation of section 60CC(2A) of the Act.
I am satisfied that there is nothing that can be done by this Court to procure or mandate a meaningful relationship between the child and the father. The opportunity to pursue such a relationship has been readily available to him and he has failed in his obligation and responsibility to afford the child the right to know him and have involvement with him.
As regards to the mother, the Orders that are sought by her will be the best that can be achieved to ensure a meaningful relationship. The meaningful relationship will continue after her death in her memory being preserved by those who will care for X, being the extended maternal family.
The second primary consideration is not in play.
Additional Considerations
I must then turn to the additional considerations.
The additional considerations are not secondary and they may assume importance equal to or greater than the primary considerations. I propose to have regard to all of the parties in addressing the additional considerations.
Views
There is no real evidence as to the child’s views and she has just turned one. She is either just beginning to speak or pre-verbal. In those circumstances, her views would not be dispositive.
Nature of the child’s relationship with each parent and other persons
This child’s primary attachment is with her mother and her Aunt. The child has a good relationship with her grandmother. She has little, if any, relationship with her father. The child’s relationships support the Orders sought.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time or communicate with the child.
That clearly is a criticism of the father. It is not and cannot be a criticism of the remaining parties. It supports the relief sought.
The extent to which each child’s parent has fulfilled or failed to fulfil their obligation to maintain the child.
The father has failed. The mother, Aunt and grandmother have not. They provide for this child and meet her needs physically, emotionally and financially. This factor supports the relief sought.
The likely effect of change, including separation from either parent or other persons
It would be disastrous for this child if there were interference with her present arrangements. She is loved, well cared for and well attached to the people with whom she lives. Such a change could not be countenanced even if it were agitated for which it is not.
I take some comfort that whilst the father is not here and his attorneys would appear to consider the discharge of their responsibilities to him fulfilled through forwarding correspondence to the solicitors for one party, they have at least expressed the father’s general support for the continuation of those arrangements. I do not make the Order by consent although it would have been preferable that it were so. However, I am satisfied the father is content and thus, does not feel that there is any need for change.
Practical Difficulty and Expense
I incorporate section 65DAA(5):
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live very close together. Thus, it is all the more mysterious why the father, for whatever reason, has determined that he does not wish to pursue any more expanded relationship with this child than he presently has.
The capacity of the mother and father to implement any arrangement is limited. However, arrangements are made when the father makes himself available or expresses a desire to see the child. I am satisfied that will remain so.
The parents’ capacity to communicate and resolve difficulties is also limited and highly problematic.
The impact on the child, I am satisfied, is addressed above. The impact of the arrangement proposed is positive.
It is not and would not be reasonably practicable for the father to be involved in the exercise of parental responsibility. He does not do so at present, has not sought to do so at any time and communication is such that it is unable to occur in the future.
Capacity of each of the child’s parents and others to meet the child’s needs
This child’s needs are abundantly well met by the Applicant and her family.
The father does not contribute to the child’s needs and his inability to pursue any relationship or provide any support that has been requested from him in this difficult time would suggest that there is some deficiency in his capacity to recognise or protect, provide for or respond to the child’s emotional needs.
Maturity, sex, lifestyle and background of the child and others
This is a very tiny child just turned one. She will, regrettably, not have the opportunity to know her mother fully or properly as she should.
She is well cared for and her needs are obvious. She cannot meet her own needs. She is entirely dependent upon adults for her care and nurture. Those needs are well met by the arrangements proposed.
Aboriginality
This is not relevant to this determination.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
I am satisfied that is addressed above. There is no criticism of or deficiency in the maternal family. There is real question with respect to the father.
Family violence
There are some issues raised in the evidence regarding family violence, but they are somewhat historical. That does not make them unimportant but they are not determinative of this issue and I am satisfied I need not consider them further.
Family violence orders
There are none.
Whether it is preferable to avoid future proceedings
I am satisfied that the Orders that are sought by the mother, well drafted and sensibly framed, will avoid future proceedings. The Orders provide that upon the mother’s inevitable passing the maternal Aunt will become the person who assumes care of the child. That is an arrangement already in place and entirely to the benefit of this child.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 15 May 2015
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